By: AP & JV Staff
With coronavirus cases surging again nationwide, the Supreme Court barred New York from enforcing certain limits on attendance at churches and synagogues in areas designated as hard hit by the virus.
The justices split 5-4 late Wednesday night, with new Justice Amy Coney Barrett in the majority. It was the conservative’s first publicly discernible vote as a justice. The court’s three liberal justices and Chief Justice John Roberts dissented.
The move was a shift for the court. Earlier this year, when Barrett’s liberal predecessor, Justice Ruth Bader Ginsburg, was still on the court, the justices divided 5-4 to leave in place pandemic-related capacity restrictions affecting churches in California and Nevada.
The court’s action Wednesday could push New York to reevaluate its restrictions on houses of worship in areas designated virus hot spots. But the impact is also muted because the Catholic and Orthodox Jewish groups that sued to challenge the restrictions are no longer subject to them.
New York Gov. Andrew Cuomo, a Democrat, said Thursday the ruling was “more illustrative of the Supreme Court than anything else” and “irrelevant from any practical impact” given that the restrictions have already been removed.
“Why rule on a case that is moot and come up with a different decision than you did several months ago on the same issue?” Cuomo asked in a conference call with reporters. “You have a different court. And I think that was the statement that the court was making.”
The Diocese of Brooklyn and Agudath Israel of America have churches and synagogues in areas of Brooklyn and Queens previously designated red and orange zones. In those red and orange zones, the state had capped attendance at houses of worship at 10 and 25 people, respectively. But those particular areas are now designated as yellow zones with less restrictive rules neither group challenged.
The justices acted on an emergency basis, temporarily barring New York from enforcing the restrictions against the groups while their lawsuits continue. In an unsigned opinion the court said the restrictions “single out houses of worship for especially harsh treatment.”
“Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty,” the opinion said.
The opinion noted that in red zones, while a synagogue or church cannot admit more than 10 people, businesses deemed “essential,” from grocery stores to pet shops, can remain open without capacity limits. And in orange zones, while synagogues and churches are capped at 25 people, “even non-essential businesses may decide for themselves how many persons to admit.”
Roberts, in dissent, wrote that there was “simply no need” for the court’s action. “None of the houses of worship identified in the applications is now subject to any fixed numerical restrictions,” he said, adding that New York’s 10 and 25 person caps “do seem unduly restrictive.”
“The Governor might reinstate the restrictions. But he also might not. And it is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic,” he wrote.
Roberts and four other justices wrote separately to explain their views. Barrett did not.
The court’s action was a victory for the Roman Catholic Church and Orthodox Jewish synagogues that had sued to challenge state restrictions announced by Cuomo on Oct. 6.
The Diocese of Brooklyn, which covers Brooklyn and Queens, argued houses of worship were being unfairly singled out by the governor’s executive order. The diocese argued it had previously operated safely by capping attendance at 25% of a building’s capacity and taking other measures. Parts of Brooklyn and Queens are now in yellow zones where attendance at houses of worship is capped at 50% of a building’s capacity, but the church is keeping attendance lower.
“We are extremely grateful that the Supreme Court has acted so swiftly and decisively to protect one of our most fundamental constitutional rights — the free exercise of religion,” said Randy Mastro, an attorney for the diocese, in a statement.
“This is an historic victory,” said Rabbi Chaim Dovid Zwiebel, Executive Vice President of Agudath Israel, “This landmark decision will ensure that religious practices and religious institutions will be protected from government edicts that do not treat religion with the respect demanded by the Constitution.”
“We are grateful to the High Court for this foundational ruling,” said Avrohom Weinstock, Esq., Agudah’s Chief of Staff. “We also would like to thank the indefatigable Avi Schick and his legal team at Troutman Pepper, and the attorneys at the Becket Fund, for their powerful legal briefs.
“Most importantly, we are deeply grateful to G-d, the true Judge, and to our rabbinic leaders whose repeated encouragement and insistence on the importance of this matter spurred us to persist in this battle towards the Supreme Court.”
Concluded Shlomo Werdiger, chairman of Agudath Israel’s Board of Trustees, “It was not an easy decision for Agudath Israel to go to court over this matter. That is not our preferred means of advocacy. However, the principle at stake was of such monumental importance that we felt it necessary to fight to uphold our religious freedom.
“The Agudah has prioritized health since the onset of this pandemic, and we continue to encourage sound health practices. With the legal parameters clarified, we look forward to continuing to work hand in hand with our elected officials to ensure the well-being of our community with a single standard of safety for religious and secular activities.”
The Agudah took particular note of Justice Neil Gorsuch’s opinion on the case. According to a statement posted on their web site about the historic case, the Agudah wrote:
“Justice Gorsuch’s concurring opinion was particularly impassioned. The Justice lamented, “Even if the Constitution has taken a holiday, during this pandemic, it cannot become a sabbatical,” concluding, “It is time—past time—to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.”
Even the four dissenting Justices based much of their argument not on disagreement with the legal principles set forth by the majority, but on the timing of weighing in at this point.”
In a statement posted on their web site, the Orthodox Union responded to the Supreme Court ruling. OU President Mark (Moishe) Bane stated:
“With its most welcome midnight ruling, the Supreme Court upheld an essential American principle – that the government may not impose rules represented as being ’neutral’ but that are actually unfair in their treatment of religious exercise. The Orthodox Union congratulates and thanks Agudath Israel of America and the Catholic Archdiocese for advancing this fundamental Constitutional principle.
“In consideration of this important Supreme Court ruling, and in light of the severe ongoing dangers of the current pandemic, the Orthodox Union reiterates its strong encouragement that all houses of worship continue to vigorously follow applicable health guidelines and adhere to the axiomatic Judaic value and priority of protecting and preserving health and human life.”
Two lower courts had sided with New York in allowing the restrictions to remain in place. New York had argued that religious gatherings were being treated less restrictively than secular gatherings that carried the same infection risk, like concerts and theatrical performances.
There are currently several areas in New York designated orange zones but no red zones, according to a state website that tracks areas designated as hot spots. (AP)